The European Court of Human Rights (Third Section),
sitting as a Chamber composed of:

Mr B.M. Zupančič, President,

Mr C. Bîrsan,

Mr J.-P. Costa,

Mrs E. Fura-Sandström,

Mrs A. Gyulumyan,

Mr David Thór Björgvinsson,

Mrs I. Berro-Lefèvre, judges,

and Mr S. Naismith, DeputySection
Registrar,

Having deliberated in private on 15 May 2007,

Delivers the following judgment, which was adopted
on that date:

PROCEDURE

1. The case originated in an application (no.
1914/02) against the French Republic lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two French nationals, Mr Jérôme
Dupuis and Mr Jean-Marie Pontaut, together with Librairie Arthème Fayard,
a company incorporated under French law (“the applicants”), on 17
December 2001.

2. The applicants were represented by Mrs C. Waquet,
of the Conseil
d'Etat and Court of Cassation Bar. The French Government (“the
Government”) were represented by their Agent, Mrs E. Belliard, Director
of Legal Affairs at the Ministry of Foreign Affairs.

3. On 26 August 2005 the Government were given
notice of the application. It was also decided, having regard to Article
29 § 3 of the Convention, that the admissibility and merits of the
case would be examined at the same time.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. By a decree of 17 March 1982, a “Mission
for coordination, information and action against terrorism” was set
up. This “anti-terrorist unit” at the Elysée Palace operated from
1983 to March 1986 within the office of the French President, engaging
in telephone tapping and recording.

5. In November 1992 a weekly magazine published
a handwritten note dated 28 March 1983, under the letterhead of the
President's Office, containing indications that telephone lines, in
particular those of certain journalists and lawyers, had been tapped.

In the same year a list of the people who had
been placed under surveillance was published in the press.

6. The case aroused considerable media interest
and a judicial investigation was opened in February 1993.

In the course of the proceedings G.M., deputy
director of the French President's private office at the time of the
surveillance, was placed under formal investigation on a charge of invading
the privacy of others.

7. On 25 January 1996, a few days after President
Mitterrand's death, the publishers Arthème Fayard published a book
entitled Les Oreilles du Président (“The President's Ears”), which
had been written by the first two applicants, both journalists, on the
subject of the monitoring operations at the Elysée Palace.

8. On 1 February 1996 G.M. lodged a criminal complaint,
with an application to join the proceedings as a civil party, against
Mr Pontaut and Mr Dupuis, accusing them of handling documents obtained
through a breach of professional confidence, of knowingly deriving an
advantage from such a breach and of handling stolen property. In his
complaint G.M. noted that appendix 1 of the book consisted of six “facsimile
telephone-tap transcripts” which were identical to documents in the
case file and that the other three appendices (list of individuals under
surveillance) were also based on information from the file. He further
cited thirty-six passages from the work which reproduced officially-recorded
statements made to the investigating judge by the individuals under
investigation or witnesses.

9. In the ensuing judicial investigation the applicants
denied having obtained their information illegally. They refused to
reveal their sources and claimed that many of the people examined by
the judge had since publicly disclosed the content of their statements.
As regards the facsimile telephone-tap transcripts and the content of
the official records, the applicants argued that they had been circulating
among journalists well before the opening of the judicial investigation.

10. In a judgment of 10 September 1998 the Paris tribunal de
grande instance found that both the facsimiles and the record
extracts came from the judicial investigation file, which was only accessible
to persons bound by the secrecy of the judicial investigation or by
a duty of professional confidence. The court considered that, regardless
of how the documents in question had been transmitted, they could not
have fallen into the applicants' hands without an offence being committed.
In the court's opinion, experienced journalists could not have been
unaware of that fact. Observing that all the elements of the offence
of handling illegally-obtained items (recel) were sufficiently established, the court found Mr Pontaut
and Mr Dupuis guilty of the offence of handling information obtained
through a breach of the secrecy of the investigation or through a breach
of professional confidence, under Articles 226-13, 226-31, 321-1 and
321-9 to 321-12 of the Criminal Code, and ordered each of them to pay
a fine of 5,000 francs (equivalent to 762.25 euros (EUR)). The court
further ordered them, jointly and severally, to pay 50,000 francs (EUR
7,622.50) in damages and found the company Librairie Arthème Fayard
civilly liable. The applicants' book continued to be published and no
copies were seized.

11. The applicants appealed. They claimed, among
other things, that Article 6 § 2 and Article 10 of the Convention had
been breached and argued that the judgment against them could not be
regarded as necessary in the light of the Convention.

12. On 16 June 1999 the Paris Court of Appeal
upheld the judgment, for the following reasons in particular:

“ ... The quantity, diversity and accuracy
of the sources used by the defendants show that they were actually in
possession of reproductions of documents from the judicial investigation
file, as mere transcriptions or oral accounts would not have enabled
them to make such systematic use of the material in that file ... The
defendants could only therefore have obtained the documents through
the intermediary of persons involved in the proceedings, who can be
divided into two groups. The first group is bound by the secrecy of
the investigation (judges and prosecutors, clerks, police officers,
etc.), any breach of which will constitute a criminal offence. The second
group consists of persons who are entitled to obtain copies of documents
but who are not bound by the secrecy of the investigation, namely lawyers
and the parties themselves ... These clear and coherent provisions show
that compliance with certain conditions ensuring the secrecy of the
investigation forms an integral part of the duty of professional confidence.
To be sure, the rights of the defence must not be impaired by that duty.
... Thus the documents used by the defendants were necessarily obtained
illegally and the precise classification of the offence has no bearing
on the unlawfulness of their origin, which is the necessary and sufficient
basis of the statutory characterisation of the offence of handling (recel),
as is confirmed by the case-law of the Court of Cassation. ...”

13. As regards Article 10 of the Convention, the
Court of Appeal held as follows:

“Even though the actual object of the handling
specifically consists of elements of the judicial investigation, it
should first be observed that the offence of handling provided for under
Article 321-1 of the Code of Criminal Procedure corresponds to a commonly
used characterisation. ... Accordingly, whilst proceedings in their
current form may not be very numerous, they are based on clear and established
provisions, which have been implemented in foreseeable conditions.

Under paragraph 2 of the above-mentioned Article
10, the exercise of freedom of expression may be subject to restrictions,
in particular for the protection of the reputation or rights of others
or for maintaining 'the authority and impartiality of the judiciary'.

It has been established that, by obtaining a
number of the confidential documents from proceedings in which [G.M.]
had been placed under judicial investigation, the defendants interfered
with his private life and with his defence rights as an individual under
judicial investigation. That action further demonstrated a wilful disregard
for the rules governing the functioning of the judicial authority. In
addition, the act of publication, which was the avowed objective of
Mr Pontaut and Mr Dupuis, was bound to prejudice the presumption of
innocence, a right which must be guaranteed for every person against
whom criminal proceedings are brought.

... An obligation to comply with the basic rules
governing the functioning of courts and the practices of persons involved
in the administration of justice contributes to maintaining the democratic
features of society. Accordingly, the rules concerning respect for the
secrecy of the judicial investigation, like those concerning the duty
of professional confidence, have the effect of protecting the judicial
authority from excessive pressure, as well as protecting essential interests
of those involved in the proceedings.

The restrictions to which freedom of expression
is subject are therefore necessary, particularly because it has not
been established that the constraints imposed in the present case really
had an adverse effect on the informing of public opinion, having regard
to the articles published on the subject, any more than it has been
established that there was a breakdown in the administration of justice
of which public opinion had to be informed.”

14. The applicants appealed on points of law.

15. In a judgment of 19 June 2001 the Criminal
Division of the Court of Cassation dismissed their appeal.

16. The Court of Cassation rejected the ground
of appeal in which the applicants alleged, among other things, that
there had been a violation of Article 6 § 2 of the Convention, finding
as follows:

“In finding guilty the defendants, who had
denied having obtained the information unlawfully, but had refused to
reveal their sources, the Court of Appeal notes that the book contained
facsimile telephone-tap transcripts which are exact copies of pages
from the investigating judge's case file, and of official records of
statements drawn up by the judge. The court adds that, absent any evidence
to support the hypothesis of accidental disclosure, the source could
only have been a professional bound by a duty of confidence, whether
one of the persons required to respect the secrecy of the judicial investigation
or a lawyer bound by a duty of professional confidence under Article
160 of the decree of 27 November 1991 on the organisation of the legal
profession. The court infers from the foregoing that, regardless of
how the documents in question were transmitted, they could not have
fallen into the hands of the defendants without an offence being committed.
It adds that experienced journalists could not have been unaware of
this fact.

In the light of that reasoning as it stands,
based on a discretionary assessment of the circumstances of the case,
the Court of Appeal, which established that the defendants had knowingly
possessed and published photocopies of material from the judicial investigation
in progress, duly substantiated its decision ...”.

17. The Court of Cassation, reasoning as follows,
also dismissed the applicants' ground of appeal, based on a violation
of Article 10 of the Convention, in which they submitted that the simple
fact that the telephone tapping described in the book was the subject
of a judicial investigation was not sufficient to justify the interference
with their freedom of expression and that the judgment against them
did not fulfil any necessity:

“In dismissing the complaint that there had
been a violation of Article 10 of the European Convention on Human Rights,
the Court of Appeal, by reasoning of its own and espousing that of the
court below, notes that the essential subject matter of the offending
work consists of the actual case file from the judicial investigation
in progress; that the book reproduces, among other things, numerous
passages from interviews with individuals examined by the investigating
judge; and that this information was used in some detail in the authors'
observations on the functioning of the monitoring system set up within
the French President's Office. The court explains that the defendants
found themselves in possession of confidential information on [G.M.]
to which they had no right of access, thus interfering with a legitimate
interest of the latter. The court adds that the limits to which freedom
of expression is subject are necessary, particularly because it has
not been established that the constraints applied in the present case
caused any real prejudice to the informing of public opinion or that
there was any breakdown in the administration of justice of which public
opinion had to be informed.

Having regard to the foregoing findings, from
which it transpires that the defendants were prosecuted for disclosing
the content, that remained confidential, of material from a judicial
investigation in progress, and that such a measure was justified by
the necessity of protecting the rights of others, one such right being
the presumption of innocence, and by the need to prevent disclosure
of confidential information and to maintain the authority and impartiality
of the judiciary, the Court of Appeal duly substantiated its decision
for the purposes of Article 10 of the European Convention on Human Rights.

...

In awarding damages to the civil party, on the
ground that the publication by the defendants of confidential information
concerning that party had directly contributed to the damage he had
sustained, the Court of Appeal substantiated its decision for the purposes
of Article 2 of the Code of Criminal Procedure.”

18. In a judgment of the Paris Criminal Court
dated 9 November 2005, G.M. was given a suspended six-month prison sentence
and fined EUR 5,000.

II. RELEVANT DOMESTIC AND INTERNATIONAL
LAW

19. The relevant provisions of the Criminal Code
read as follows:

Article 226-13

“The disclosure of confidential information
by persons who are entrusted with it either on account of their position
or profession or on account of a temporary function or assignment shall
be punished by one year's imprisonment and a fine of 15,000 euros.”

Article 321-1

“The offence of handling (recel) is constituted by the concealment, possession or transmission
of a thing, or by the fact of acting as an intermediary with a view
to its transmission, in the knowledge that the said object was obtained
by means of a serious crime (crime)
or other major offence (délit).

The offence of handling is also constituted by
the fact of knowingly deriving an advantage, by any means, from the
product of a serious crime or other major offence. Handling shall be
punished by five years' imprisonment and a fine of 375,000 euros.”

20. Recommendation Rec(2003)13
of the Committee of Ministers of the Council of Europe to member States,
on the provision of information through the media in relation to criminal
proceedings, reads as follows:

“...

Recalling that the media have the right to inform
the public due to the right of the public to receive information, including
information on matters of public concern, under Article 10 of the Convention,
and that they have a professional duty to do so;

Recalling that the rights to presumption of innocence,
to a fair trial and to respect for private and family life under Articles
6 and 8 of the Convention constitute fundamental requirements which
must be respected in any democratic society;

Stressing the importance of media reporting in
informing the public on criminal proceedings, making the deterrent function
of criminal law visible as well as in ensuring public scrutiny of the
functioning of the criminal justice system;

Considering the possibly conflicting interests
protected by Articles 6, 8 and 10 of the Convention and the necessity
to balance these rights in view of the facts of every individual case,
with due regard to the supervisory role of the European Court of Human
Rights in ensuring the observance of the commitments under the Convention;

...

Desirous to enhance an informed debate on the
protection of the rights and interests at stake in the context of media
reporting relating to criminal proceedings, and to foster good practice
throughout Europe while ensuring access of the media to criminal proceedings;

...

Recommends, while acknowledging the diversity
of national legal systems concerning criminal procedure,that the governments of member states:

1. take or reinforce, as the case may be, all
measures which they consider necessary with a view to the implementation
of the principles appended to this recommendation, within the limits
of their respective constitutional provisions,

2. disseminate widely this recommendation and
its appended principles, where appropriate accompanied by a translation,
and

3. bring them in particular to the attention of
judicial authorities and police services as well as to make them available
to representative organisations of lawyers and media professionals.

Appendix to Recommendation Rec(2003)13 - Principles concerning the provision of information through the mediain relation
to criminal proceedings

Principle 1 - Information of the public via the media

The public must be able to receive information
about the activities of judicial authorities and police services through
the media. Therefore, journalists must be able to freely report and
comment on the functioning of the criminal justice system, subject only
to the limitations provided for under the following principles.

Principle 2 - Presumption of innocence

Respect for the principle of the presumption
of innocence is an integral part of the right to a fair trial. Accordingly,
opinions and information relating to on-going criminal proceedings should
only be communicated or disseminated through the media where this does
not prejudice the presumption of innocence of the suspect or accused.

...

Principle 6 - Regular information during criminal proceedings

In the context of criminal proceedings of public
interest or other criminal proceedings which have gained the particular
attention of the public, judicial authorities and police services should
inform the media about their essential acts, so long as this does not
prejudice the secrecy of investigations and police inquiries or delay
or impede the outcome of the proceedings. In cases of criminal proceedings
which continue for a long period, this information should be provided
regularly.

...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10
OF THE CONVENTION

21. The applicants complained that the judgment
against them did not meet a pressing social need and had therefore breached
their right to freedom of expression. The fact that the case had not
been initiated by the public prosecutor was proof of this, in their
view. The applicants further claimed that the offending book had caused
no prejudice to G.M.'s presumption of innocence, it being publicly known
that he was under judicial investigation. In this connection they invoked
their right to impart information in the context of an affair of state
and argued that this public debate concerned the exercise of power,
with its excesses and its checks and balances, and that the debate pre-dated
the book's publication, the purpose of which was not to impede the investigation.
The applicants relied on Article 10 of the Convention, of which the
relevant part reads as follows:

“1. Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public authority
and regardless of frontiers. ...

2. The exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and are
necessary in a democratic society ... for the protection of the reputation
or rights of others, for preventing the disclosure of information received
in confidence, or for maintaining the authority and impartiality of
the judiciary.”

22. The Government contested the applicants' arguments.

A. Admissibility

23. The Court observes that this complaint is
not manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It moreover considers that no other ground for declaring
it inadmissible has been established and therefore declares it admissible.

B. Merits

1. The parties' submissions

(a) The applicants

24. The applicants argued in particular that the
interference was not necessary. In their submission, the secrecy of
the judicial investigation was binding only on the participants in the
investigation but not on the parties. Disclosure was not prohibited
and there were no facts that were specifically precluded from being
imparted to third parties.

25. Moreover, the applicants considered that they
had not prejudiced the protection of the rights of others. Even though
there had not yet been a judgment in the case when the book was published,
the judicial investigation had been ongoing for the previous three years
and a further ten years had then elapsed before the judgment of the
Paris Criminal Court. In such a context, the publication of a book to
report once again on what was an affair of state, whilst the judicial
system was being particularly slow, did not contravene any fundamental
principle and especially not the secrecy of the judicial investigation.
When an investigation lasted for such a long period, and when testimony,
evidence and elements could have disappeared in the meantime, it was,
on the contrary, praiseworthy and in the interest of democracy for investigative
journalists to disclose what they discovered through their own investigations.
In the present case, it had no longer been a question of protecting
evidence but, on the contrary, of preventing its disappearance by bringing
into the public domain what the judicial system had struggled to bring
to light.

26. In this connection, the public interest prevailed
over the interest of G.M. and it could not be argued that his right
to presumption of innocence had been prejudiced in such a way that the
criminal court had been unable to pass judgment, ten years later, with
totally unfettered discretion in the assessment of his guilt.

(b) The Government

27. The Government did not dispute the fact that
the applicants' conviction for the offence of handling information protected
by the secrecy of a judicial investigation or by a duty of professional
confidence constituted interference with their right to freedom of expression.
In their opinion, that interference was prescribed by law, namely by
Articles 226-13 and 321-1 of the Criminal Code, which fulfilled the
conditions of accessibility and foreseeability required by the Court
(see Fressoz
and Roire v. France [GC], no. 29183/95, ECHR 1999-I). The Government
considered, however, that the interference constituted a measure that
was necessary in a democratic society for the protection of the reputation
or rights of others and for maintaining the authority and impartiality
of the judiciary. Without disputing the fact that the aim of the applicants'
work had been to inform the general public about an affair of state
that was of interest to public opinion, they considered that it prejudiced
the presumption of innocence in respect of G.M. The publication of the
book just a few days after the death of François Mitterrand had given
it a certain commercial and media impact, thereby increasing the prejudice
sustained by G.M. Moreover, the affair had been a very sensitive one
and the book had contained precise reproductions of a number of documents
from the case file.

28. In the Government's view, the interference
was in fact proportionate to the aim pursued. The prohibition on producing
documents from an investigation file was limited to the period of the
judicial investigation itself and covered only the acts of handling
and disclosure of actual documents from the case file; therefore it
did not prevent journalists from imparting information on a case that
was the subject of an ongoing judicial investigation or from engaging
in their own investigations, interviewing parties to the proceedings,
witnesses or lawyers, or even from making critical comments about judicial
activity.

29. The Government lastly considered that the
present case had to be distinguished from that of Fressoz and Roire (cited above). The secrecy of the judicial
investigation and respect for the presumption of innocence, which protected
collective and public interests, could not be placed on the same footing
as confidentiality in tax matters, which protected purely private interests.
Moreover, the French courts had adduced sufficient reasons in support
of their decisions after a precise examination. The public's right to
information on the “Elysée eavesdropping” affair had not been impaired,
the publication of the book had continued and no copies had been seized.
The public had, moreover, continued to be informed extensively by the
media. In addition, the applicants had been given a “token sentence”,
far less than the statutory maximum.

2. The Court's assessment

30. The Court observes that the applicants were
ordered to pay a fine and damages on account of the use and reproduction
in their book of elements from the judicial investigation file. It is
not in dispute that the applicants sustained “interference” with
their right to freedom of expression under Article 10 of the Convention.
Such interference will be in breach of Article 10 unless it fulfils
the requirements of paragraph 2 of that Article. It therefore remains
to be determined whether the interference was “prescribed by law”,
pursued one or more of the legitimate aims referred to in that paragraph
and was “necessary in a democratic society”.

(a) “Prescribed by law”

31. The Court notes that the offences with which
the applicants were charged had been provided for, like the penalties
imposed, in the Criminal Code. Moreover, the applicants did not dispute
the foreseeability and accessibility of the applicable statutory provisions.
The interference was thus prescribed by law.

(b) Legitimate aim

32. The Court observes that the domestic courts
based their decisions on a breach of professional confidence or of the
secrecy of the judicial investigation. The interference thus had the
aim, among others, of guaranteeing respect for the right of a person
who had not yet stood trial to be presumed innocent. It also had the
aim of ensuring the proper administration of justice by preventing any
extraneous influence on that administration. These aims correspond to
the protection of “the reputation or rights of others” and to the
maintaining of “the authority and impartiality of the judiciary”,
in so far as the latter safeguard has been construed as encompassing
the rights enjoyed by individuals as litigants in general (see Ernst and Others
v. Belgium,no. 33400/96, § 98, 15 July 2003).

Accordingly, the Court considers that the reasons
adduced by the domestic courts were consonant with the legitimate aim
of protecting G.M.'s right to a fair trial, with due respect for presumption
of innocence.

(c) “Necessary in a democratic society”

(i) Reminder of general principles

33. Freedom of expression constitutes one of the
essential foundations of a democratic society and the safeguards to
be afforded to the press are therefore of particular importance (see,
among other authorities, Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, p. 23,
§ 31; Worm
v. Austria, judgment of 29 August 1997, Reports of Judgments and Decisions 1997-V, p. 1550-51, § 47;
and Fressoz
and Roire, cited above, § 45).

34. The press plays an essential role in a democratic
society. Although it must not overstep certain bounds, in particular
in respect of the reputation and rights of others and the need to prevent
the disclosure of information received in confidence, its duty is nevertheless
to impart – in a manner consistent with its obligations and responsibilities
– information and ideas on all matters of public interest (see De Haes and
Gijsels v. Belgium, judgment of 24 February 1997, Reports 1997-I, pp. 233-234, § 37; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III; Thoma v. Luxembourg,
no. 38432/97, §§ 43-45, ECHR 2001-III; and Tourancheau and July v. France, no. 53886/00, § 65, 24 November
2005).

35. In particular, it would be inconceivable to
consider that there can be no prior or contemporaneous discussion of
the subject matter of judicial proceedings elsewhere, be it in specialised
journals, in the general press or amongst the public at large. Not only
do the media have the task of imparting such information and ideas:
the public also has a right to receive them. However, it has to be taken
into account that everyone is entitled to the enjoyment of the guarantees
of a fair trial set out in Article 6 § 1 of the Convention, which in
criminal proceedings include the right to an impartial tribunal (Tourancheau
and July, cited above, § 66). As the Court has already had occasion
to point out, “[t]his must be borne in mind by journalists when commenting
on pending criminal proceedings since the limits of permissible comment
may not extend to statements which are likely to prejudice, whether
intentionally or not, the chances of a person receiving a fair trial
or to undermine the confidence of the public in the role of the courts
in the administration of criminal justice” (ibid., and Worm, cited above, § 50).

36. As a matter of general principle, the “necessity”
for any restriction on freedom of expression must be convincingly established.
Admittedly, it is in the first place for the national authorities to
assess whether there is a “pressing social need” for the restriction
and, in making their assessment, they enjoy a certain margin of appreciation.
In the present context of the press, the national margin of appreciation
is circumscribed by the interest of democratic society in ensuring and
maintaining a free press. Similarly, that interest will weigh heavily
in the balance in determining, as must be done under paragraph 2 of Article 10,
whether the restriction was proportionate to the legitimate aim pursued
(see, to the same effect, Goodwin v. the United Kingdom, judgment of 27 March 1996, Reports
1996-II, pp. 500-501, § 40; Worm, cited above, § 47; and Bladet Tromsø and Stensaas, cited above, § 59).

37. The Court's task, in exercising its supervisory
function, is not to take the place of the national authorities but rather
to review under Article 10 the decisions they have taken pursuant to
their power of appreciation. In so doing, the Court must look at the
“interference” complained of in the light of the case as a whole
and determine whether the reasons adduced by the national authorities
to justify it are “relevant and sufficient” (see, among other authorities, Goodwin,
cited above, and Du Roy and Malaurie v. France, no. 34000/96, § 27, ECHR 2000-X). Also of relevance for
the balancing of competing interests which the Court must carry out
is the fact that under Article 6 § 2 of the Convention individuals
have a right to be presumed innocent of any criminal offence until legally
proved guilty (see Du Roy and Malaurie, cited above, § 34, and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 78, ECHR 2004-XI).

38. It is therefore for the Court to determine
whether the interference complained of met a “pressing social need”,
whether it was proportionate to the legitimate aim pursued and whether
the reasons adduced by the national authorities to justify it appear
“relevant and sufficient”.

(ii) Application to the present case

39. The Court observes at the outset that the
subject of the book was an issue of considerable public interest. The
book made a contribution to a matter that was an affair of state, as
the Government acknowledged, and of interest to public opinion, providing
certain information and considerations about the prominent figures whose
telephone lines had been illegally monitored, about the conditions in
which the operations had taken place and about the identity of the instigators.
It is moreover noteworthy that the list of the “two thousand individuals
under surveillance” included the names of numerous figures who were
particularly prominent in the media.

40. The Court reiterates that Article 10 § 2
of the Convention leaves little scope for restrictions on freedom of
expression in the area of political speech or in matters of public interest
(see Sürek
v. Turkey(no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV). Furthermore,
the limits of acceptable criticism are wider as regards a politician
as such than as regards a private individual. Unlike the latter, the
former inevitably and knowingly lays himself open to close scrutiny
of his every word and deed by both journalists and the public at large,
and he must consequently display a greater degree of tolerance (see Lingens v. Austria,
judgment of 8 July 1986, Series A no. 103, p. 26, § 42; Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, p. 1567, § 54; Feldek v. Slovakia, no. 29032/95, § 74, ECHR 2001-VIII; and Brasilier v. France, no. 71343/01, § 41, 11 April 2006). The
promotion of free political debate is a fundamental feature of a democratic
society. The Court attaches the highest importance to freedom of expression
in the context of political debate and considers that very strong reasons
are required to justify restrictions on political speech. Allowing broad
restrictions on political speech in individual cases would undoubtedly
affect respect for freedom of expression in general in the State concerned
(see Feldek,
cited above, § 83). In the present case, the speech complained of concerned
G.M., one of President François Mitterrand's closest aides. Although
G.M., who initiated the proceedings and judgment against the applicants,
could not himself be described, strictly speaking, as a politician,
he nevertheless had all the characteristics of an influential public
figure, being clearly involved in political life and at the highest
level of the executive.

41. Not only does the press have the task of imparting
such information and ideas: the public also has a right to receive them
(see, among many other authorities, Observer and Guardian v. the United Kingdom, judgment of 26 November 1991, Series A
no. 216, p. 30, § 59; Jersild, cited above, p. 23, § 31; and De Haes and Gijsels, cited above, p. 234, § 39). This was
particularly true in the present case, concerning as it did an illegal
system of telephone tapping and recording directed against many prominent
figures from civil society and organised at the highest echelon of the
State. The revelation of these facts aroused a considerable degree of
emotion and concern among public opinion. The offending book, like reports
on court cases, satisfied a concrete and sustained public demand in
view of the increasing interest shown nowadays in the day-to-day workings
of the courts. The public therefore had a legitimate interest in the
provision and availability of information about these proceedings and,
in particular, about the facts reported in the book.

42. The importance of the media's role in the
area of criminal justice is, moreover, very widely recognised. In particular,
the Court has previously found that “[p]rovided that it does not overstep
the bounds imposed in the interests of the proper administration of
justice, reporting, including comment, on court proceedings contributes
to their publicity and is thus perfectly consonant with the requirement
under Article 6 § 1 of the Convention that hearings be public” (Worm,
cited above, § 50). The Council of Europe's Committee of Ministers,
for its part, has adopted Recommendation Rec(2003)13 on the provision
of information through the media in relation to criminal proceedings.
It rightly points out that the media have the right to inform the public
in view of the public's right to receive information, and stresses the
importance of media reporting on criminal proceedings in order to inform
the public and ensure public scrutiny of the functioning of the criminal
justice system. In addition, the appendix to that Recommendation states
that the public must be able to receive information about the activities
of judicial authorities and police services through the media and that
journalists must therefore be able to report freely on the functioning
of the criminal justice system.

43. Admittedly, those who exercise freedom of
expression, including journalists, undertake “duties and responsibilities”
the scope of which depends on their situation and the technical means
they use (see, mutatis mutandis, Handyside v. the United Kingdom, judgment of 7 December 1976,
Series A no. 24, p. 23, § 49 in fine). In the present case the domestic courts considered,
in view of the nature of the documents reproduced in the book or used
in support of certain passages in the book, that the authors, as experienced
journalists, could not have been unaware that the said documents came
from the judicial investigation file and were protected, depending on
the person who instigated their disclosure, by the secrecy of the judicial
investigation or by a duty of professional confidence. While recognising
the vital role played by the press in a democratic society, the Court
emphasises that journalists cannot, in principle, be released from their
duty to abide by the ordinary criminal law on the basis that Article
10 affords them protection. Indeed, paragraph 2 of Article 10 defines
the boundaries of the exercise of freedom of expression. It falls to
be decided whether, in the particular circumstances of the case, the
interest in the public's being informed outweighed the “duties and
responsibilities” the applicants had as a result of the suspect origin
of the documents that had been transmitted to them.

44. The Court must more specifically determine
whether the aim of protecting the secrecy of a judicial investigation
provided relevant and sufficient justification for the interference.
It is legitimate for special protection to be afforded to the secrecy
of a judicial investigation, in view of the stakes of criminal proceedings,
both for the administration of justice and for the right of persons
under investigation to be presumed innocent. However, in the circumstances
of the present case, the Court considers that, at the time when the
offending book was published, in January 1996, in addition to there
being very wide media coverage of the so-called “Elysée eavesdropping”
case, it was already publicly known that G.M. had been placed under
investigation in this case, in the context of a pre-trial judicial investigation
which had started about three years earlier, and which ultimately led
to his conviction and suspended prison sentence on 9 November 2005, that
is to say just over nine years and nine months after the book was published.
Moreover, the Government have failed to show how, in the circumstances
of the case, the disclosure of confidential information could have had
a negative impact on G.M.'s right to the presumption of innocence or
on his conviction and sentence almost ten years after that publication.
In actual fact, following the publication of the impugned book and while
the judicial investigation was ongoing, G.M. regularly commented on
the case in numerous press articles. In those circumstances, the protection
of the information on account of its confidentiality did not constitute
an overriding requirement.

45. In this connection it is noteworthy that,
while the applicants' conviction for the offence of handling was based
on the reproduction and use in their book of documents which had come
from the investigation file and which, accordingly, were found to have
been communicated in breach of the secrecy of the judicial investigation
or in breach of professional confidence, that conviction inevitably
concerned the disclosure of information. It is open to question, however,
whether there was still any need to prevent disclosure of information
that was already, at least partly, available to the public (see Weber v. Switzerland,
judgment of 22 May 1990, Series A no. 177, p. 23, § 51, and Vereniging Weekblad Bluf! v. the Netherlands, judgment of 9 February 1995, Series A no. 306-A,
p. 15, § 41) and might already have been known to a large number of people
(see Fressoz
and Roire, cited above, § 53) having regard to the media coverage
of the case, on account of the facts and of the celebrity of many of
the victims of the telephone tapping in question.

46. The Court further considers that it is necessary
to take the greatest care in assessing the need, in a democratic society,
to punish journalists for using information obtained through a breach
of the secrecy of an investigation or a breach of professional confidence
when those journalists are contributing to a public debate of such importance
and are thereby playing their role as “watchdogs” of democracy.
Article 10 protects the right of journalists to divulge information
on issues of public interest provided that they are acting in good faith
and on an accurate factual basis and provide “reliable and precise”
information in accordance with the ethics of journalism (see Goodwin, cited above, § 39; Fressoz and Roire, cited above, § 54; and Colombani and Others v. France, no. 51279/99, § 65, ECHR 2002-V).
In the present case, it transpires from the applicants' undisputed allegations
that they acted in accordance with the standards governing their profession
as journalists, since the impugned publication was relevant not only
to the subject matter but also to the credibility of the information
supplied, providing evidence of its accuracy and authenticity (see Fressoz and
Roire, cited above, § 55).

47. Furthermore, as regards the penalties imposed,
the Court reiterates that the nature and severity of the penalty are
also factors to be taken into account when assessing the proportionality
of interference (see Sürek (no. 1), cited above, § 64; Paturel v. France, no. 54968/00, § 47, 22 December 2005; and Brasilier,
cited above, § 43).

48. The Court first notes that the two authors
were fined EUR 762.25 each and were also ordered jointly to pay EUR
7,622.50 in damages to G.M. In addition, the applicant company was found
to be civilly liable. However, no order to destroy or seize the book
was issued and its publication was not prohibited (see Paturel, cited above, § 48). That being said, the amount of
the fine, although admittedly fairly moderate, and the award of damages
in addition to it, do not appear to have been justified in the circumstances
of the case (see Brasilier, cited above, § 3, and Paturel, cited above, § 49). Moreover, as the Court has stated
on numerous occasions, interference with freedom of expression might
have a chilling effect on the exercise of that freedom (see, mutatis mutandis, Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 114,
ECHR 2004-XI) – an effect that the relatively moderate nature of a
fine would not suffice to negate.

49. In conclusion, the Court considers that the
judgment against the applicants constituted a disproportionate interference
with their right to freedom of expression and that it was therefore
not necessary in a democratic society.

Accordingly, there has been a violation of Article
10 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE
6 § 2 OF THE CONVENTION

50. The applicants further complained, additionally
relying on Article 6 § 2 of the Convention, that the domestic courts
had failed to respect the principle of presumption of innocence since,
in their view, no evidence had been adduced to show that the documents
had come into their possession fraudulently. Article 6 § 2 reads as
follows:

“Everyone charged with a criminal offence shall
be presumed innocent until proved guilty according to law.”

51. In view of its finding of a violation under
Article 10 of the Convention, the Court considers that the complaint
under Article 6 § 2, which should be declared admissible, is based
on the same facts and that therefore no separate question arises under
Article 6 § 2 of the Convention.

III. APPLICATION OF ARTICLE 41 OF
THE CONVENTION

52. Article 41 of the Convention provides:

“If the Court finds that there has been a violation
of the Convention or the Protocols thereto, and if the internal law
of the High Contracting Party concerned allows only partial reparation
to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”

53. As the applicants did not submit any claims
for just satisfaction, the Court considers that no award should be made
to them under that head (see, among other authorities, Brasilier, cited above, § 46).

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2. Holds that there has been a violation of Article 10 of the Convention;

3. Holds that no separate question arises under Article 6 § 2
of the Convention.

Done in French, and notified in writing
on 7 June 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.